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Gerry Johns v. L.S. Mcewen

February 6, 2013

GERRY JOHNS,
PETITIONER,
v.
L.S. MCEWEN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: William Q. Hayes United States District Judge

HAYES, Judge:

ORDER

The matter before the Court is the Report and Recommendation (ECF No. 9) of United States Magistrate Judge Mitchell D. Dembin.

BACKGROUND

On July 10 1981, in California Superior Court, County of San Bernardino, Petitioner Gerry Johns was convicted by a jury of second-degree murder and robbery with firearm enhancements. (ECF No. 7-1 at 3-4). On August 7, 1981, Petitioner was sentenced to an indeterminate life sentence. Id. at 5-6.

On January 28, 2010, while Petitioner was incarcerated at Calipatria State Prison, a cellular telephone was found "secreted inside a hot pot" in Petitioner's cell. Id. at 8. Prison reports state that the hot pot was located "on top of the cell's top bunk easily available to both inmates." Id. Petitioner and his cell mate were charged with "unauthorized communication with/by an inmate via cellular telephone" in violation of California Code of Regulations § 3005(a) and California Penal Code § 4570. Id.

On March 7, 2010, a disciplinary hearing was held. Petitioner pled not guilty. Id. at 12. On March 18, 2010, Petitioner was found guilty by the hearing officer and assessed a 60-day forfeiture of good time credits. Id. at 13-14. Petitioner filed a "Second Level Appeal" within the prison, which was granted in part on June 4, 2010; Petitioner's violation was reduced to "possession of contraband/cellular telephone" and his good time credit forfeiture was reduced to 30 days. Id. at 16-17.Petitioner appealed the June 4, 2010 decision to the "Director's Level," where he was denied any further relief on October 28, 2010. Id. at 29-30.

On December 30, 2010, Petitioner filed a habeas corpus petition in California Superior Court, County of Imperial. Id. at 35-42. On February 2, 2011, the California Superior Court denied the petition. Id. at 52-53.

On March 22, 2011, Petitioner filed a habeas corpus petition in the California Court of Appeal. Id. at 57-66. On April 26, 2011, the California Court of Appeal denied the petition. Id. at 99-100.

On June 6, 2011, Petitioner filed a habeas corpus petition in the California Supreme Court. Id. at 102-111. On November 2, 2011, the California Supreme Court summarily denied the petition. Id. at 133.

On December 19, 2011, Petitioner filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 in this Court, raising two claims for relief: (1) deprivation of due process on the grounds that Petitioner was not afforded "a fair and impartial decision maker"; and (2) the decision of the California Court of Appeal "was based on an unreasonable determination of the facts in light of the evidence presented." (ECF No. 1). On April 23, 2012, Respondent filed an Answer, contending that the state courts properly denied Petitioner's claims. (ECF No. 6). On May 23, 2012, Petitioner filed a Traverse. (ECF No. 8). On October 4, 2012, the Magistrate Judge issued a Report and Recommendation, recommending that the Petition be denied. (ECF No. 9). On October 29, 2012, Petitioner filed objections to the Report and Recommendation. (ECF No. 10). The docket reflects that Respondent did not file a reply.

STANDARD OF REVIEW

The duties of the district court in connection with a Report and Recommendation of a Magistrate Judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1). When a party objects to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Fed. R. Civ. P. 72(b); see also 28 U.S.C. § 636(b)(1).

DISCUSSION

This Court's review of the Petition is governed by the deferential standard of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996. Under this standard, a petition cannot be granted unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 404-05 (2000). "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. . . . Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted).

"Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the claim rest on the same grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the "look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F. 3d 1190, 1198 (9th Cir. 2006). In this case, the last ...


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